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16-P-783 Appeals Court

COMMONWEALTH vs. JAMIE BAKER.

No. 16-P-783.

Plymouth. March 8, 2017. - May 4, 2017.

Present: Grainger, Blake, & Neyman, JJ.

Constitutional Law, Search and seizure, Roadblock by police. 

Search and Seizure, Motor vehicle, Roadblock by police. 

Motor Vehicle, Operating under the influence. Practice, 

Criminal, Motion to suppress.

Complaint received and sworn to in the Brockton Division of 

the District Court Department on May 27, 2014. 

A pretrial motion to suppress evidence was heard by 

Julieann Hernon, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Barbara A. Lenk, J., in the Supreme 

Judicial Court for the county of Suffolk, and the appeal was 

reported by her to the Appeals Court.

Keith A. Garland, Assistant District Attorney, for the 

Commonwealth.

Bethany J. Rogers for the defendant.

GRAINGER, J. Defendant Jamie Baker, charged in the 

District Court with operating while under the influence of 
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alcohol, see G. L. c. 90, § 24(1)(a)(1), and negligent 

operation, see G. L. c. 90, § 24(2)(a), moved to suppress 

evidence of his intoxication, arguing that the evidence was 

secured from a sobriety checkpoint not conducted in strict and 

absolute compliance with the written operational plan (the 

plan). After his motion was allowed, the Commonwealth was given 

leave by a single justice of the Supreme Judicial Court to 

pursue this interlocutory appeal. The Commonwealth argues that 

the motion judge erred in suppressing the evidence and we agree.

We recite the pertinent facts found by the motion judge. 

Police Captain Thomas Majenski was directed by police Major 

Anthony Thomas to conduct a saturation patrol and sobriety 

checkpoint with a detail of State troopers and police officers 

from the town of Abington (the town). The plan stated that the

roadblock would begin at 11:30 P.M. Major Thomas directed that 

all officers report for the training and briefing session prior 

to the checkpoint. Captain Majenski was directed to command the 

detail for the roadblock. Three officers1 arrived after the 

roadblock commenced. Upon their arrival, Captain Majenski 

briefed them. 

During the roadblock, the defendant was pulled over and 

greeted by Sergeant Kevin Cutter of the town police. Sergeant 

Cutter observed signs of intoxication in the defendant and 

 

1 Troopers Kyle Duarte, Carly Timmons, and Andrew Hamilton.
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directed him to the "pit" area. The defendant refused "to drive 

the vehicle." He then was escorted from the vehicle to the pit 

area where Officer Justin Simmons of the town police asked him 

to perform sobriety tests. After the tests, the defendant was 

placed under arrest.

Upon completion of the roadblock, officer activity reports 

were not submitted by any of the town police officers2 or by four 

of the State troopers. One officer present at the roadblock 

failed to sign the duty roster affirming that he had reviewed 

the plan and the State police General Order TRF-15, which 

governed sobriety checkpoints. The motion judge concluded that 

the Commonwealth failed to demonstrate that the roadblock was 

conducted in strict compliance with the plan. 

Discussion. We determine independently whether the judge 

correctly applied constitutional principles to the facts as 

found. Commonwealth v. Ocasio, 434 Mass. 1, 4 (2001). "[F]or 

sobriety checkpoints to be reasonable under the Fourth Amendment 

[to the United States Constitution] and art. 14 [of the 

Massachusetts Declaration of Rights], 'the selection of motor 

vehicles to be stopped must not be arbitrary, safety must be 

assured, motorists' inconvenience must be minimized, and 

assurance must be given that the procedure is being conducted 

 

2 As previously stated, the officer who greeted the 

defendant and the officer who conducted the sobriety tests were 

members of the town police. 
4

pursuant to a plan devised by law enforcement supervisory 

personnel.' . . . Police officers may not . . . have discretion 

to target which vehicles to stop." Commonwealth v. Murphy, 454 

Mass. 318, 323 (2009). In sum, "[t]he constitutional 

jurisprudence regarding roadblocks in general, and sobriety 

checkpoints in particular, has focused on the reasonableness of 

the initial stop of a vehicle, which constitutes a seizure 

without individualized suspicion." Id. at 324-325. 

The judge concluded that the roadblock deviated from the 

plan in four respects: (1) a number of officers arrived after 

the reporting time detailed in the plan, (2) while Captain 

Majenski was briefing the late officers, he was not performing 

supervisory duties as instructed, (3) one trooper, who was not 

the officer involved with stopping the defendant's vehicle, did 

not sign the duty roster affirming he had reviewed the plan and 

other relevant documents, and (4) after the roadblock was 

completed, several officers failed to submit a report as 

required by the plan. 

We conclude, however, that none of these deviations 

introduced constitutionally prohibited "arbitrariness and 

discretion" into the actions of the screening officer (Sergeant 

Cutter). Commonwealth v. Anderson, 406 Mass. 343, 349 (1989). 

Indeed, the defendant declined to challenge the particular basis 

for which he was stopped and asked to perform sobriety tests.
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Discrepancies with the plan do not necessarily convert a 

vehicle checkpoint into a constitutionally unreasonable seizure. 

See Commonwealth v. Aivano, 81 Mass. App. Ct. 247, 250-251 

(2012) (discrepancy between actual location of roadblock and 

description in press release did not make roadblock 

constitutionally unreasonable seizure). The roadblock started 

on time with the minimally required number of officers, per 

Major Thomas's directive. The officers who interacted with the 

defendant had arrived on time. Furthermore, § 5.1 of the State 

police Division Commander's Order 13-DFS-008, which governed 

highway safety programs, allows the possibility of officers 

arriving after the roadblock has been established.3 Section 5.1

also authorized Captain Majenski, as the supervisor, to brief 

the officers after their arrival. We therefore conclude that 

the late arrivals and Captain Majenski's briefing did not render 

the roadblock unconstitutional.

Although one State trooper failed to sign the duty roster, 

there was no indication that this trooper had not been briefed 

appropriately or was unaware of his responsibilities under the 

plan as he turned in the required officer activity report. The 

failure of four State troopers and all of the town police 

 

3 This order states that for sobriety checkpoints, "a 

secondary briefing of officers not in attendance at the presaturation phase roll-call may be conducted prior to his/her 

participation in the sobriety checkpoint."
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officers to fill out officer activity reports at the completion 

of the roadblock also did not introduce the use of discretion 

during the actual roadblock. 

In sum, none of the deviations cited by the defendant 

"introduce[d] an opportunity for discretionary departure by law 

enforcement in the field from the dictates of the plan." Id. at 

250. Additionally pertinent here is the fact that the 

discrepancies did not have any effect on the defendant, and did 

not violate any of his personal rights. See Commonwealth v. 

Ocasio, 434 Mass. at 4. Contrast Commonwealth v. Anderson, 

supra at 349-351 (defendant stopped fifteen minutes after 

scheduled end of roadblock suffered actual harm as result of 

deviation from plan). The order allowing the defendant's motion 

to suppress is reversed and a new order shall enter denying the 

motion.

So ordered.